Lufkin Foundry and, Machine Co.

National Labor Relations Board - Board Decisions

Feb 17, 1969

174 N.L.R.B. 556 (N.L.R.B. 1969)

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lufkin Foundry and, Machine Company and
A.F.L.-C.I.O., Petitioner. Case 16-UC-22
February 17, 1969
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On May 17, 1968, the Regional Director for
Region 16 issued a Decision and Clarification of
Bargaining Unit in the above-entitled proceeding.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Regional
Director's Decision on the grounds that substantial
issues of fact and law are raised as to his findings
that 13 of the working foremen at its Lufkin, Texas,
plant were not supervisors, and that, in any event, a
substantial issue of law is raised as to the propriety
of his inclusion of such working foremen in the
Petitioner's existing unit in a unit clarification
proceeding.
The National Labor Relations Board by
telegraphic Order dated August 19, 1968, granted
the Employer's request for review. The Employer
filed a brief on review in which it incorporated the
issues and arguments advanced in its request for
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review,
including the Employer's request for review and
brief on review, and makes the following findings:
The Petitioner filed the instant petition for
clarification of its existing bargaining unit seeking to
include therein all working foremen and six
servicemen at the Employer's Lufkin plant.
On December 11, 1967, the Employer filed a
motion to dismiss the petition on the ground that a
unit clarification proceeding was improper: that
because the disputed employees had been excluded
from the certified bargaining unit for such a long
period of time with the acquiescence of the
Petitioner and its predecessor, they were entitled to
a self-determination election on the question of
inclusion. The Regional Director denied the motion,
concluding that the unit clarification petition was
proper, as the unit placement issues being raised had
not been resolved in the original' certification
proceeding and there was no specific reference to the
disputed categories of employees in the unit
description. The Regional Director therefore
considered the merits of the unit placement issues
raised. He found 13 of the 35 disputed working
foremen to be nonsupervisory employees and
clarified the Petitioner ' s bargaining unit by
specifically including them . All other working
foremen , he found , were supervisors properly
excluded from the unit. He also found to be
properly outside the unit six servicemen attached to
the commercial gear department on the basis that
they, had interests diverse from production and
maintenance employees.
In requesting review, the Employer contended, as
aforesaid , ( 1) that the Regional Director erred in
finding that the aforementioned 13 working foremen
were not supervisors , and (2), that in any event, on
the facts of this case , they may not be included in
the Petitioner ' s bargaining unit without an election.
The Petitioner ' s predecessor , A.F.L., was certified
in 1949 for a production and maintenance unit at
the Employer's Lufkin plant.' At the election
leading to that certification, working foremen were
challenged by A.F. L. on the ground that they were
supervisors . However, the number of challenged
ballots was insufficient to affect the results and
neither the Employer nor A.F.L. filed a request for
clarification with the Board to resolve the issues as
to the supervisory status of the working foremen.
Since February 14, 1950 , the effective date of the
first contract after issuance of the certification, the
bargaining unit has not included working foremen.
The record indicates that since that time the jobs of
working foremen have remained substantially the
same, even though the number of working foremen
has increased by about 5 percent. From time to time
grievances have been filed with respect to the
performance of unit work by working foremen.
However , the issue of inclusion of working foremen
in the unit was raised for the first time during the
Petitioner' s negotiations with the Employer for the
2-year contract effective April 21, 1966.
In view of the foregoing and the entire record
herein, especially the facts that the disputed 13
working foremen ' s jobs have been in existence since
prior to the 1949 certification of the bargaining unit
involved, that the contracts negotiated subsequent to
certification of the unit have excluded them , that no
question as to their inclusion was raised until 1966,
and that no allegation is made that recent changes
in their job content have made them nonsupervisory
unit employees , we find that the request for their
inclusion in the unit at this time raises a question
concerning representation which may not be
resolved in a unit clarification proceeding . Even if
we were to agree with the Regional Director upon
review of the record that these 13 working foremen
are not supervisors as defined in the Act, the proper
procedure for obtaining their inclusion in the unit is
a petition pursuant to Section 9(c) of the Act
seeking an election .2 Accordingly , without reaching
the issues raised as to correctness of the Regional
Director ' s findings that these 13 working foremen
'83 NLRB 768.
2See Sterilon Corporation , 147 NLRB 219, General Electric Company,
174 NLRB No. 90
LUFKIN FOUNDRY & MACHINE CO. 557
are not supervisors, we find that they may remain
excluded from the unit and deny the Petitioner's
request for clarification. Accordingly, we shall
dismiss the petition.
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
144 NLRB 88, Westinghouse Electric Corporation , 142 NLRB 317, ACF Sperry Rand Corporation , 132 NLRB 1093, and cases cited therein; Ethyl
Industries , Incorporated , 136 NLRB 594; Westinghouse Electric Corp. Corporation , 118 NLRB 1369. Cf Newark Stove Co. 143 NLRB 583;
(Naval Reactors Facility, 133 NLRB 1; Remington Rand Division of Westinghouse Air Brake Co., 123 NLRB 859